- .- -- BEFORE THE STATE BOARD OF MEDICAL EXAMINERS STATE OF COLORADO Case No. ME 2000-5 FINN: BOARD ORDER IN THE MATTER OF THE REGARDING THE LICENSE TO PRACTICE MEDICINE IN THE STATE OF COLORADO OF DURAND J. KAHLER. 0.0.. LICENSE NO. 21739. Respondent This matter came before Hearings Panel A of the Colorado State Board of Medical Examiners (?the Hearings Panel") for review of the Initial Decision of Administrative Law Judge. Michael E. Hart (?the issued in the above referenced caSe on August 3. 2000. That decision is incorporated by reference as though fully set forth herein. On August 23. 2000, Petitioner Inquiry Panel ?led a Designation of Record and Transcripts. On August 28, 2000. Petitioner Inquiry Panel ?led a Request for Oral Argument On September 26. 2000. RespOndent submitted a Request to Continue the Oral Argument On October 20. 2000. Petitioner Inquiry Panel ?led Exceptions to the Initial Decision. On October 30. 2000, Respondent ?led a Response to the Exceptions of the Inquiry Panel. Pursuant to the Colorado Board of Medical Examiners Rules and Regulations Regarding Exceptions to Initial Decisions and Related Matters. Petitioner inquiry Panel B's Request for Oral Argument was grants-J. Respondent?s Request to Continue the Oral Argument was also granted. On December 7, 2000. the Hearings Panel considered the initial Decision of the ALJ. the subsequent pleadings ?led by the parties as noted above. and the designated portions of the hearing record. The Hearings Panel also heard oral argument by the parties. Present during oral argument and deliberations was Conflicts Counsel from the Of?ce of the Attorney General. After due consideration of the record. inducing mitigating factors. the Exceptions to the Initial Decision ?led by Petitioner Inquiry Panel and Reapondent's Responseto those Exceptions. and Othel'WiSB being fully advised in the premises. the Hearings Panel, pursuant to and 24-4?105. CR. 8.. rules as follows: 1. The ALJ?si-?indings of Fact are supported by the record and are affirmed and adopted by the Hearings Panel. . . 2. The ALJ's Conclusions of Law are supported by the record and are af?rmed and-l adopted by the Hearings Panel. 3. The Hearings Panel reiects the ALJ's recommended sanction asset forth in the Initial Decision as being inappropriate in light of the Findings of Fact in this case. - . n. ,m a' Respondent argues that the violations of the Medicat Practice Act as set forth in this case" constitute a singular catastrophic event. Respondent further argues that he is at minimal risk to reoffend and this opinion is supported by uncontradicted opinions- from medical experts. Further, Respondent agrees that it is important to his community that he remain in practice. that he has already made appropriate changes to his medical practice. and that his patients have remained loyal to him in spite of the publicity surrounding this case. Respondent advised the Hearing Panel that he was willing to accept the ALJ's recommended sanction. Petitioner Inquiry Panel has requested revocation of Respondent's license to practice medicine. The inquiry Panel argues that the fact Respondent engaged in multiple sexual boundary violations with three patients is so egregious as to warrant revocation of Respondean license. . The Hearings Panel's duty is to ?rst consider the protection of the public in determining what sanctions are appropriate. The Hearings Panel found persuasive the medical opinions regarding Respondent?s likelihood to reoffend and his remorse regarding the sexual boundary violations which he committed. However. the Panel found the fact that Respondent had engaged in sexual boundary violations with three separate patients over the period of more than one year to be aggravating and to require sanctions beyond those recommended by the ALJ to assure the public is adequately protected. - THEREFORE. IT IS HEREBY ORDERED: That the?license to practice medicine in the state of Colorado of Durand J. Kahler, 0.0.. shall be bound by the terms and conditions set forth below: SUSPENSION A. Respondent shall be suspended for a period of six months to commence thirty (30) days after the effective date of this Order. During the period of suspension. Respondent shall perform no act de?ned as the practice of medicine in section 12-36-106. C.R.S. PRO BATIONARY TERMS 8. Following the six-month period of suspension. Respondent's license shall be placed on status for a. period of ?ve years. During the probationary period. Respondent shall be bound by the terms and conditions set forth below: TREATMENT MONITORING C. During the probationary period. Respondent shau receive such medical great-rent as is determined to be appropriate by the Colorado Physician Health Program All instructions to Respondent by CPHP shall constitute terms of this Order, and must be complied with. Failure to comely with any such instruction shall constitute a violation of this Order. CPHP shall also function as the 'treaunent monitor" as that term is used in this Order. CPHP shall monitor Respondent's compliance with this Order in the following manner. 1- Respondent Shall DhYSically meet with CPHP at least quarterly. and more frequently. if recommended by CPHP. These meetings must be conducted in person and may not be held via the telephone. 2. CPHP shall determine whether additional counseling, such as mamage counseling. is wananted. Any recommendations by CPHP with respect to counseling shall constitute a term of this Order. in -. 3. Respondent shall complete any additional boundaries education. as recommended by CPHP. . 4. CPHP shall submit quarterly written reports to the monitoring Panel of the Board. Each report shall brie?y describe Respondent?s treatment with CPHP. Each report shall also state whether Reapondent is in compliance with this Order. if at any time CPHP has reasonable cause to believe that Respondent has violated the. terms of this Order. is unable to practice with skill and with safety to patients. Or has committed unprofessional conduct as de?ned in section 12-38?1 17(1). C.R.S.. CPHP shall immediately inform the monitoring Panel. 5. Within thirty (30) days of the effective date of this Order. Respondent shall complete an unrestricted release permitting CPHP to disclose to the Panel all privileged information Clinceming Respondent in its possession. including information generated by other sources. Any revocation of such release by Respondent shall constitute a violation of this Order. 6. if at any time CPHP feels that any of the above requirements are no longer necessary. CPHP may petition the monitoring Panel to relax the above requirements. If the Panel agrees to such a relaxation. it shall so inform CPHP by written notice. Thereafter. Respondent may comply with this Order as set forth in that notice. PRACTICE SETTING During the probationary period. Respondent must either practice with one or more physicians or must work with CPHP to develop a mentoring program to assist with the consultative and administrative responsibilities of Respondent?s practice. A solo practice sets Respondent up to overwork and assume too much responsibility. (reference Findings of Fact. paragraph 114) PRACTICE MONITORING During the probationary period. Respondent's medical practice shall be monitored by a "practice monitor'. Prior to resuming practice at the end of the period of suspension; Respondent must have a practice monitor approved by the monitoring Panel. The Reapondent shall nominate. in writing. a proposed practice monitor for the monitoring Panel?s approiral. The nominee shall be a physician licensed by the Board. and currently practicing medicine in Colorado. The nominee shall have no financial interest in Respondent?s practice of medicine. The nominee must be knowledgeable in Respondent's area of practice. If Respondent is board certi?ed in an area of practice. it is preferred. but not required. that the nominee be board certi?ed by that same board. if the Respondent has privileges at hospitals. it is preferred. but not required. that the nominee have privileges at as many of those same hospitals as possible, The nominee shall not have been disciplined by the Board. Respondent's nomination for practice monitor shall set forth how the nominee meets the above criteria. With the written nomination. Respondent shall submit a letter signed by the nominee as well as a current curriculum vitae cf the nominee. The letter from the nominee shall contain a statement from the nominee indicating that the nominee has read this Order and understands and agrees to perform the obligations set font-l herein The nominee must also state that the nominee can be fair and impartial in the review of the Respondent?s practice. . The practice monitor must be approved before Respondent medin practice. At such time as Respondent resumes medical practice. the practice monitor shall perform the following: . 1. Each month, the practice monitor shail visit all the of?ces at which Respondent practices medicine. and review at least ?ve charts maintained by Respondent, The practice monitor shall make reasonable effort to ensure that Respondent has no notice of which charts will be selected for review. The practice monitor is authorized to review such other medical records maintained by Respondent as the practice monitor deems appropriate. 2. Each month the practice monitor shall review at least ?ve hospital charts of patients whom Respondent has admitted to hospitals. If Respondent has admitted fewer than ?ve patients. the practice monitor shall review all the patients so admitted. if any. The practice monitor shall make reasonable efforts to ensure that Respondent has no notice of which charts will be selected for review. The practice monitor is authorized to review such other hospital charts as the practice monitor deems appropriate. 3. The practice monitor shall submit quarterly written reports to the monitoring Panel. 4. The practice monitor?s report shall include the following: a) A description of each of the cases reviewed; and b) as to each case reviewed. the practice monitor?s opinion whether Respondent is practicing medicine in accordance with generally accepted standards of medical practice. c) The practice monitor must also state whether the charts reviewed contain the Disclosure to Patients form as required by this Order as set forth in paragraph below. d) A statement from the practice monitor whether each of the charts of female patients reviewed document the name of the chaperone in the patient's chart for I each of?ce appointment. - . If at any time the practice monitor believes Respondent is not in compliance with this Order. is unable. to practice with skill and safety to patients. or has otherwise committed unprofessional conduct as de?ned in section 12-36-1 17(1). C.R.S.. the practice monitor shall immediately inform the monitoring Panel. it is the responsibility of the Respondent to assure that the-practice monitor?s reports are timely and complete. Failure of the practice monitor to perform the duties set forth above may result in a notice from Board staff requiring the nomination of a new practice monitor. Upon such noti?cation. Respondent shall nominate a new practice monitor according to the procedures set forth above. Respondent shall nominate the new monitor within thirty (30) days of such notice. Failure to nominate a new monitor within thirty (30) days of such noti?cation shall constitute a violation of this Order. CHAPERONE Whenever Respondent is physically present with a female patient in an outpatient setting. a third person shall be continuously present as a diaperone. Respondent shall be reSponsible for arranging for the presence of the chaperone. if a patient is accompanied throughout the of?ce appointment by an adult member of the patients family, the diaperone requirement shall be ful?lled for that patient?s visit. Respondent shall document the name. of the chaperone in the patients chart for each of?ce appointment. - REQUIREMENT . Respondent must disclose to his patients that he has been sanctioned by the Board for sexual boundary violations with patients. This disclosure is to be accomplished via a form. to be approved by the monitoring Panel. The form must be approved by the monitoring Panel my to Respondent's return to medical practice following the period of suspension. The form must include the following: 1. The form shall be titled as follows: Disclosure to Patients of Sexual Boundary Violations. 2. That Respondent has been sanctioned by the Board for sexual boundary violations with patients. 3. That a copy of the Board's Order may be obtained by contacting the Board o?oe and include the Board's address. telephone number. and email address. 4. That any concerns regarding Respondent's conduct should be reported to the Board. 5. An acknowledgement statement that the patient has been given an opportunity to read this form and a space for the patient's signature and date of signature. This form is to be provided to all patients, or their guardian. upon Respondent's return to medical practice. The form is to be signed by the patient or guardian. and made a part of the patient?s medical record. OUT OF STATE PRACTICE . Respondent may wish to leave Colorado and practice in another state. At any time. whether to practice out of state. or for any other reason. Respondent may request that the Board place Respondent?s license on inactive status as set forth in section 12-36- - 137. C.R.S. Upon the approval of such request. Respondent may cease to comply with the provisions of this Order. Failure to comply with any of these proysions. while inactive. shall not constitute a violation of this Order. Unless Respondent's license is inactive. Respondent must comply with all provisions of this?brder. The probationary period will be tolled for any period of time Respondent's license is inactive. . Respondent may resume the active practice of medicine at any time as set? forth in secdon C.R.S. With such requests, Respondent shall nominate a practice monitor as provided above. Respondent shall be permitted to resume the active practice of medicine only after approval of the practice monitor. At such time as Respondent resumes the active practice of medicine. all other terms and conditions of this Order shall be in effect. . TERMINATION OF PROBATION . Upon expiration of the probationary period. Respondent may request restoration of ReSpondent's license to unrestricted status. if Respondent has complied with the terms of probation, and if Respondent's probationary period has not been tolled, such relief shall be granted by the monitoring Panel in the ionn of written notice. OTHER TERMS P. Within ?fteen (15) days of the effective date of this Order, Respondent shall report to the Board any current hospital pnvtieges. Respondent shall also report to the Board. within 15 days ?of receipt. any new hospital privileges so that the Board may notify the hospital pursuant to section 12-36?1 C.R.S. 0. All costs and expenses incurred by Respondent to comply with this Order shall be the sole responsibility of Respondent and shall in no way be the obligation of the Board. the Hearings Panel or the monitoring Panel. . This Order becomes effective upon signature by the Hearings Panel members. This decision becomes final upon mailing. Any party adverser affected or aggrieved by any agency action may commence an action for judicial review before the Court of Appeals within forty??ve (45) days after such action becomes effective. Reference Sections and 12-36?119. C.R.S. ?Tb- Dated and signed this day of 2001. FOR THE COLORADO STATE BOARD OF MEDICAL EXAMINERS HEARINGS PANEL A BEFORE THE COLORADO MEDICAL BOARD STATE OF COLORADO CASE NOS: 2012-05329-B and 2012-05406-B INTERIM CESSATION OF PRACTICE AGREEMENT IN THE MATTER OF THE LICENSE TO PRACTICE IVIEDICINE AS A PHYSICIAN IN THE STATE OF COLORADO OF DURAND J. KAHLER, D.0., LICENSE NO. DR 0021739, - Respondent. IT IS HEREBY STIPULATED and agreed by and between Inquiry Panel (the ?Panel?) of the Colorado Medical Board (the ?Board?) and Durand J. Kahler, D.0. (?ReSpondent?) (collectively the ?Parties?) as follows: 1. Respondent was licensed to practice medicine in the state of Colorado on July 1978, and was issued license number DR 0021739, which Respondent has held continuously since that date. 2. The Panel and the Board have jurisdiction over Re5pondent and over the subject matter of this proceeding. 3. On September 13, 2012 the Panel reviewed information relating to Case Nos. and 2012-05406-B and found that based upon the information reviewed, the Panel had reasonable grounds to believe that the public health, safety, or welfare imperativer requires emergency action. In part, the Panel reviewed information that ReSpondent engaged in sexual acts with a patient during the course of patient care. RespOndent?s medical license was disciplined on January 1i, 2001 for sexual boundary violations with three patients. Based on the facts reviewed to date about Case Nos. 2012- 05329-B and and'the serious nature of the boundary violation, the Board has concerns about ReSpondent's medical judgment. 4. In lieu of summary susPension pursuant to section C.RS., the Parties have agreed to enter into this Interim Cessation of Practice Agreement (?Agreement?) pursuant to which the suspension proceedings are stayed while investigations and evaluations continue so that the Panel may determine what action, if any, is warranted. Any summary suspension is hereby stayed pursuant to the terms of this Agreement. 5. Respondent agrees that he will not perform any act requiring a license issued by the Board while this Agreement is in e??ect. 6. This Agreement shall remain in effect until such time as the Parties reach a ?nal disposition of this case or, in the event additional summary suspension proceedings are initiated, until such time as an order for summary suspension enters. INTERIM CBS OF PRACTICE AGREEMENT BEFORE THE COLORADO MEDICAL BOARD RE: THE LICENSE TO PRACTICE MEDICINE OF DURAND J. KAI-ILER, D.O. The Panel agrees that it will not institute summary su5pension proceedings while this Agreement is in effect as long as Respondent remains in compliance with this Agreement and the Panel does not learn of new information that would indicate that summary suspension is warranted. 8. Nothing in this Agreement shall constitute disciplinary action, a finding that Respondent has engaged in unprofessional conduct, or any admission by ReSpondent of unprofessional conduct. There have been no ?nal detenninations regarding Respondent?s professional competence or professional conduct. Nothing in this Agreement shall constitute ?nal actions as de?ned in section 24-4-1020), C.R.S. 9. Nothing in this Agreement shall preclude the Panel ?'om initiating disciplinary action pursuant to section 12-36-118, C.R.S., or issuing a Final Agency Order while this Agreement is in effect. 10. Respondent understands that he has the right to be represented by counsel of his choice, and Respondent is represented by counsel. 1 1. The terms of this Agreement were mutually negotiated and determined. 12. The Parties acknowledge that they understand the legal consequences of this Agreement. The Parties enter into this Agreement voluntarily, and the Parties agree that no term or condition of this Agreement is unconscionable. 13. This Agreement and all its terms constitute a valid board order for purposes of section C.R.S. 14. So that the Board may notify hospitals of this Agreement, Respondent presently holds privileges at the following hOSpitals: __none 15. Invalidation of any portion of this Agreement by judgment or court order shall in no way affect any other provision of this Agreement. 16. This Agreement shall be effective upon signature by Respondent. Respondent acknowledges that the Panel may 'choose not to accept the terms of this Agreement and that if the Agreement is not approved by the Panel and signed by a Panel member or other authorized person, the Agreement is void. 17. This Agreement constitutes the entire agreement between the Parties, and there are no other agreements or promises, written or oral, which modify, interpret, construe or affect this Agreement. 18. All costs and expenses incurred by Respondent to comply with this Agreement shall be the sole responsibility of Respondent, and shall in no way be the obligation of the Board or Panel. - INTERN OF PRACTICE AGREEMENT BEFORE THE COLORADO MEDICAL BOARD RE: THE. LICENSE TO PRACTICE MEDICINE 0F DURAND l. KAHLER, 13.0. THE FOREGOING Interim Cessation of Practice Agreement is effective upon . signature by Respondent, above, and is approved thjs/ day of September, 2012. FOR THE COLORADO MEDICAL BOARD INQUIRY PANEL a il??otg/Du APPROVED AS TO FORM: FOR DURAND J. KAI-ILER, D.O. FOR THE COLORADO MEDICAL BOARD JOHN w. SUTHERS ?v - Victoria E. Lovato, Esq. Erie Max?eld, #29485* Silver DeBoskey, P.C. Assistant Attorney General 1801 York Street Business and Licensing Section Denver, Colorado 80206 Attorneys for the Colorado Medical Board, Denver, Colorado 80203 Telephone: (303) 866?4579 *Counsel of Record INTERIM OF PRACTICE AGREEMENT BEFORE THE COLORADO MEDICAL BOARD RE: THE LICENSE TO PRACTICE MEDICINE 0F DURAND J. KAI-ILER, D.O. 19. This Agreement shall constitute a public record but is not reportable to the National Practitioner Data Bank or to the Healthcare Integrity Protection Data Bank. DURAND J. KAHLER, D.O. THE FOREGOING was acknowledged before me this [g day of September, 2012 by Durand Kahler, D.O., in the County of 421/ State of amaw NOTARY PUBLIC 0 5&5: ?aw 6/ Commission expiration date INTERIM CESSATION OF PRACTICE AGREEMENT BEFORE THE COLORADO MEDICAL BOARD RE: THE LICENSE TO PRACTICE MEDICINE OF DURAND I. KAHLER, D.O. BEFORE THE COLORADO MEDICAL BOARD STATE OF COLORADO CASE NO. 2012-5329-B 2012-5724-B STIPULATION AND FINAL AGENCY ORDER IN THE MATTER OF THE DISCIPLTNARY PROCEEDING REGARDING THE LICENSE TO PRACTICE MEDICINE IN THE STATE OF COLORADO OF DURAND J. KAHLER, D.O., LICENSE NUMBER DR 0021739, Respondent. IT IS HEREBY STIPULATED and agreed by and between Inquiry Panel (?Panel?) of the Colorado Medical Board (?Board?) and Durand J. Kahler, D.O. (?Respondent?) (collectively ?the Parties?) as follows: JURISDICTION AND CASE HISTORY 1. Respondent was licensed to practice medicine in the state of Colorado on July 1 1, 1978 and was issued license number DR 0021739, which Respondent has held continuously since that date. 2. The Panel and the Board have jurisdiction over Respondent and over the subject matter of this proceeding. 3. Respondent?s medical license was disciplined by the Board on January 11, 2001 for multiple sexual boundary violations with three patients. Pursuant to a 2001 Final Agency Order Respondent?s license was suspended for six months, followed by a probationary term of ?ve years. Respondent completed the terms Of the Final Agency Order. 4. On or about September 1 1, 2012, the Parties entered into an Interim Cessation of Practice Agreement (?Interim Agreement?) in lieu of summary suspension pursuant to Section C.R.S. The Parties entered the Interim Cessation of Practice Agreement following the Board?s review of information that Respondent engaged in sexual acts with a patient in 2012. This Interim Agreement remains in effect until such time as a Final Board Order becomes effective in this case. 5. On October 18, 2012, the Panel reviewed case numbers 2012-5329-B 201.2- 5724-B and determined that further proceedings by formal complaint were warranted pursuant to Section 12-36?1 C.R.S. 6. It is the intent of the parties and the purpose of this Stipulation and Final Agency Order (?Order?) to provide for a settlement of all matters set forth in case numbers 2012-5329-8 2012-5724-8, without the necessity of holding a formal disciplinary hearing. This Order constitutes the entire agreement between the parties, and there are no other agreements or promises, written or oral, which modify, interpret, construe or affect this Order. 7. Respondent understands that: a. Respondent has the right to be represented by an attorney of the Respondent?s choice and Respondent is represented by counsel; b. Respondent has the right to a formal complaint and disciplinary hearing pursuant to Section 12?36-1 18(5), c. By entering into this Order, Respondent is knowingly and voluntarily giving up the right to a hearing, acknowledges the factual basis as recited in this Order, and relieves the Panel of its burden of proving such facts; (1. Respondent is knowingly and voluntarily giving up the right to present a defense by oral and documentary evidence, and to cross-examine witnesses who would testify on behalf of the Panel; e. Respondent is knowingly and voluntarily waiving the right to seek judicial review of this Order. FACTUAL BASIS 8. Respondent acknowledges and the Panel ?nds that, if the Panel were to prove the following factual allegations at hearing, it would constitute a prima facie case of unprofessional conduct as de?ned in the Medical Practice Act, and would subject Respondent to discipline. ReSpondent denies these allegations. a. Respondent treated Patient A from August of 20i1 through June 21, 2012 for anxiety and depression. b. Respondent engaged in multiple sexual acts with Patient A from May 21, 2012, following an appointment for medical treatment, through August 12, 2012. c. On June 21, 2012, Respondent told Patient A that Patient A must not inform the Board about the sexual relationship between Respondent and Patient A. (1. Respondent, through provision of medical treatment to Patient A, was in a position of trust vis-a?vis Patient A. Through a sexual relationship with Patient A, Respondent violated Patient A?s trust. e. Respondent, through a sexual relationship with Patient A, demonstrated disregard for the possibility of serious negative consequences to Patient A, in contravention of his professional responsibility and Board policy 10-12. 9. Respondent admits and the Panel ?nds that the acts and/or omissions described in the factual basis above, if proven, would constitute unprofessional conduct pursuant to section C.R.S., which states: "Unprofessional conduct" as used in this article means: Engaging in a sexual act with a patient during the course of patient care 0r within six months immediately following the termination of the licensee's professional relationship with the patient. ?Sexual act?, as used in this paragraph means sexual contact, sexual intrusion, or sexual penetration as de?ned in section 18-3-40], C.R.S. 10. Based upon the above, the Panel is authorized by Section 12-36- C.R.S. to order conditions upon Respondent?s practice that it deems appropriate. PERMANENT RELINQUISHMENT OF LICENSE ll. Commencing on the effective date of this Order, Respondent?s license to practice medicine in the State of Colorado is permanently relinquished. Respondent understands and acknowledges that he is permanently relinquishing a license to practice medicine in Colorado. Respondent agrees not to apply for reactivation, reinstatement or issuance of a new license to practice medicine in Colorado at any time in the future. Respondent specifically waives any right to which he may be entitled pursuant to Section 12? 36-1 C.R.S. regarding application for licensure. 12. Following relinquishment of Respondent?s license, Respondent shall perform no act requiring a license issued by the Board, nor shall Respondent perform any act in any other location pursuant to the authority of a license to practice medicine granted by the state of Colorado. OTHER TERMS 13. The terms of this Order were mutually negotiated and determined. 14. Both parties acknowledge that they understand the legal consequences of this Order; both parties enter into this Order voluntarily; and both parties agree that no term or condition of this Order is unconscionable. 15. All costs and expenses incurred by Respondent to comply with this Order shall be the sole responsibility of Respondent, and shall in no way be the obligation of the Board or Panel. 16. So that the Board may notify hospitals of this agreement pursuant to Section C.R.S., Respondent presently holds privileges at or is employed by the following hospitals: None. 17. This Order and all its terms shall have the same force and effect as an order entered after a formal hearing pursuant to section C.R.S., except 3 that it may not be appealed. This Order and all its terms also constitute a valid board order for purposes of section C.R.S. 18. This Order shall be admissible as evidence at any future hearing before the Board. 19. lnvalidation of any portion of this Order by judgment or court order shall in no way affect any other provision, which shall remain in full force and effect. 20. During the pendency of any action arising out of this Order, the obligations of the parties shall be deemed to be in full force and effect and shall not be tolled. 21. This Order shall be effective upon approval by the Panel and signature by a Panel member or other authorized person. Respondent acknowledges that the Panel may choose not to accept the terms of this Order and that if the Order is not approved by the Panel and signed by a Panel member or other authorized person, it is void. 22. Upon becoming effective, this Order shall be open to public inspection and shall be publicized pursuant to the Board?s policies and procedures. Additionally, this Order shall be reported to the Federation of State Medical Boards, the National Practitioner Data Bank/Healthcare Integrity and Protection Data Bank and as otherwise required by law. Durand J. Kahler, D.O. THE FOREGOING was acknowledge efore me this a day 2013, by Durand J. Kahler, D0. in the County of ex State of 0 cmer In. Milan norm mauc sure or COLORADO NOTARY ID mm 10. 2013 Commission expiration date THE FOREGOING Stipulation and Final Agency 0 der is approved and effective this day of .2013. RTHE COLORADO MEDICAL BOARD QUIRY PANEL Mata? Swt't-APPROVED AS TO FORM: - FOR THE RESPONDENT j? Victoria E. Lovato, Esq: Silver DeBoskey, PC. Attorneys for Durand J. Kahler, DO. 1801 York Street Denver, Colorado 80206 Telephone: 303-399-3000 FOR THE COLORADO MEDICAL BOARD JOHN W. SUTHERS Attorney General Eric Max?eld First Assistant 0 General* Business and Lice ing Section Attorneys for the olorado Medical Board Inquiry Panel 1525 Sherman Street, 7th Floor Denver, Colorado 80203 Telephone: (303) 866-4579 FAX: (303) 866-5395 *Counsel of Record BEFORE THE STATE BOARD OF MEDICAL EXAMINERS FEB 1 3 2000 STATE OF COLORADO Case NO. ME 20-_ FORMAL COMPLAINT OF THE ATTORNEY GENERALINOTICE TO SET, NOTICE OF HEARING, NOTICE OF DUTY TO ANSWER AND STATEMENT WITH REGARD TO ALTERNATIVE DISPUTE RESOLUTION IN THE OF THE DISCIPLINARY PROCEEDING REGARDING THE LICENSE TO PRACTICE MEDICINE IN THE STATE OF COLORADO OF DURAND J. ICAHLER. D.O., LICENSE NO. 21739, ReSpondent. FORMAL COMPLAINT COMES NOW the Colorado State Board of Medical Examiners (the "Board"; Inquiry Panel (the "Panel"), by the Colorado Attorney General, and makes this formal complaint against Durand]. Kahler, D.O. ("Respondent"), pursuant to 12-36-1186), C.R.S.: Jurisdiction 1. The Board and the Panel possess jurisdiction Over Respondent and the subject matter of these proceedings as set forth in the Colorado Medical Practice Act, 12-3 6-101 to .1137, C.R.S., and the State Administrative Procedure Act, 24-4-101 to 108. C.R.S. 2. Respondent was licensed to practice medicine in Colorado on July 1 1, 1978, and was issued license number 21739. He has remained continuously licensed. . Unprofessional Conduct a. In 1992, the Respondent began providing medical care to Patient DH. 4. The Respondent provided medical care to Patient D.1-l. through February of 1999. S. In February of 1998, the Respondent began an affair, including sexual relations. with Patient DH. 6. The ReSpondent continued the sexual affair With Patient into February of 1999.. Div. Of Admin. Hearings Matters in 7. The Board of Medical Examiners adopted Disciplinary Guidelines for Cases Involving Boundary Violations (?Disciplinary Guidelines?), effective February 13, 1996 and revised on May 16. 1996 and May 20. 1999. The Disciplinary Guidelines include a list of aggravating and mitigating factors for consideration of sexual misconduct cases. 8. The ReSpondent?s year-long sexual affair with Patient D.i-i. constituted a signi?cant degree of exploitation of?the doctor-patient relationship. 9. Patient D.H. was vulnerable due to her medical condition, specifically depression. 10. The Respondent engaged in multiple sexual acts with Patient DH. 1 l. The Respondent engaged in additional sexual acts with two other patients or former patients, during the course of patient care or within six months immediately following the termination of the physician?s professional relationship with the patients. 12. The Respondentengaged in planned or premeditated activities to further his i sexual affair with Patient D.H. 13. The Re5pondent engaged in serious anti-social activity, including but not limited to, excessive alcohol consumption and violence against Patient spouse. unprofessional conduct as de?ned in engaging in a sexual act with a patient, during the course of patient care or within six months immediately following the termination of the physician?s professional relationship with the patient. Count II 15. The conduct set forth in 3-13 above establish that Respondent has engaged in unprofessional conductas defined in ?12-36-1 17( C.R.S.: any acts or omissions which fail to meet generally accepted standards of medical practice. - The Panel may move to amend its complaint following discovery. The Amended Complaint would include speci?c allegations of additional patient affairs or any other matters revealed during th'e'discovery process. Count I 14. The conduct set forth in 3-13 above establishes that Respondent has engaged in Ix.) WHEREFORE the Panel respectfully requests that appropriate disciplinary action. as provided by law, be imposed. NOTICE TO SET- YOU ARE HEREBY NOTIFIED that the attorney for Inquiry Panel ofthe Comrng State Board ofMedical Examiners will appear on Friday, February 25, 2000 at 9:00 3.111. in the Office of the Division of Administrative Hearings. 1 HO Lincoln Street, Suite 1-1-00, Denver, Colorado 30203 for the purpose ofobtaining a date for the hearing of the Formal Complaint. You are invited to appear in person or by counsel. If you cannot be present personally or through counsel, you may contact the setting clerk at the Division ot?Adminisrrarit-e Hearings (303) 894- 2500 On the aforementioned date and time to participate in the setting. NOTICE OF HEARING YOU ARE HEREBY NOTIFIED that pursuant to 12-36?1 18. C.R.S., and 24-4-105, C.R.S., a hearing on the Formal Complaint of the Attorney General will be held before an administrative lawjudge, on a date to be set, for the purpose of determining whether you engaged in unprofessional conduct as set forth in and C.R.S. of the Colorado Medical Practice Act, and whether your license to practice medicine in Comrade should be revoked, suspended, or otherwise disciplined, pursuant to C.R.S. of the Colorado Medical Practice Act. - - At the hearing, you shall have the right to appear in person with legal counsel, to cross? examine any witness, to rebut any evidence presented by the complainant, and to present evidence in your own defense. The Panel?s statement with regard to an Option to engage in mediation is attached for your review and signature. NOTICE OF DUTY TO ANSWER YOU ARE HEREBY NOTIFIED that. pursuant to C.R.S., you are required to ?le a written answer to the FOrmal Complaint with the Division of Administrative Hearings, 1120 Lincoln Street, Suite 1400, Denver, Colorado 80203, within 30 days after the service or mailing of this Formal Complaint of the Attorney General, Notice to Set, Notice of Hearing, Notice of Duty to Answer and Statement With Regard to Alternative Dispute Resolution. You must also mail a copy ofsuch answer to the Panel's attorney, A. Thomas Downey, Assistant Attorney General, Office of the Attorney General. 1525 Sherman St.. 5th Floor, Denver. Colorado 80203. b) If you fail to ?le your written answer within the applicable time period, an order entering a default decision may be issued against you for the relief requested in the Formal Complaint of the Attorney General, without further notice, or such other penalties which may be provided for by law, without further notice. Date: February 16. 2000 Respectfully submitted. KEN SALAZAR Attorney General I . ?7241 L, A. moms DOWNEY. 29:1 Assistant Attorney General Business and Licensing Section Attorneys for the Board of Medical Examiners and Inquiry Panel 1525 Sherman Street, 5th Floor Denver, Colorado 80203 Telephone: (303) 866-6174 FAX: (303) 866-5395 *Counsel of Record AG 36 ME ?5 FILE BEFORE-THE STATE BOARD OF MEDICALEXAMINERS . STATEDF-COLORADO . 'Case No. ME '2000-5 . IN THE MATTER OF THE DISCIPLINARY REGARDING THE LICENSE TO PRACTICE OF OF DURAND KAHLER. 0.0., LICENSE NO. 21739. Respondent. This matter came before Hearings Panel A of'the Colorado State Board of Medical Examiners ("the Hearings Panel?) for review of the Initial Decision of Administrative Law Judge. Michael E. Harr (?the issued in the above referenced case on August 3.2000. That decision is incorporated by reference as thoughlfully-set forth herein." - On August 23. 2000. Petitioner inquiry Panel 8 ?lled a Designation of Record and Transcripts. . . On August 28. 2000. Petitioner-?Inquiry Panel ?led a Request for Oral Argument On September 26, 2000. Respondent submitted a Request to Continue the Oral Argument On :PetitionerHI-nquiry?Panel ?led Exceptions to the initial Decision. On October 30. 2000. Respondent filed a Response to the Exceptions of the inquin Panel. Pursuant to the Colorado Board of Medical Examiners' Rules and Regulations Regarding Exceptions to initial Decisions. and Related. Matters. Petitioner inquiry Panel B's Request for Oral Argument was grants-d. Respondent?sRequest to Continue the Oral Argument was also December 7, 2000.-tl1e Hearings Panel considered the Initial Decision of the ALJ, the subsequent pleadings ?led by the parties as noted above, and the designated portions of the hearing record. The Hearings Panel also heard oral argument by the parties. Present during oral argument and deliberations was Conflicts Counsel from the Of?ce of the Attorney General. After due'consideration-iof the' record. including mitigating factors. the Exceptions to the initial Dedision .?led by Petitioner Inquiry Panel and Respondent?s ReSponse to those Exceptions. and otherwise being fully advised in the premises. the Hearings Panel. pursuant to and 24?4-1135. rules as follows: 1. The [findings 2 of Fact are supported by the-record ahd; ar? ammd and adepted bytheHearings-Panel. - -- - . 2. The ALJ's Conclusions of Law are supported by the record and. ar?-?af?nnedgandg adoptedby the Hearings -- - - 3. The Hearings Panels rejeCts the forth in .the' initial Decision as being?inappropriate in lightiof-the in this case; - - Respondent argues that the violations of the-Medical Practice'Act?as set" forth in this 'case - constitute a singular catastrophic event. Respondent further argues that he is at minimal risk to reo?end and this opinion is- supported by uncontradicted. opinionsrxirom medical: experts. Further. Respondent agrees that it is important to his community thathe'remain in: practice that he has already made appropriate changes to his medical! practice, and that his patients have remained loyal to him. in spite of the publicity surrounding'this case. Respondent advised the Hearing Panel-that he was willing to accept the recommended sanction. Petitioner Inquiry-Panel has requested revocation of Respondent's license to practice medicme. .The Panel argues'that the fact Respondent engaged. in multiple sexual boundary Violations with three patients is so egregious as. to warrant revocation of Respondent?s license. . . . The Hearings Panel?s duty is to ?rst consider the protection of the public in determining what sanctions are appropriate; The Hearings Panel found persuasive the medical opinions - regarding Respondent?s likelihood to reoffend and his remorse regarding the sexual boundary violations which he committed; "However, the Panel found the fact that Respondent had engaged in sexual boundary violations separatepaiients over the- period of more than one year to be aggravating and to require sanctions beyond those recommended by the ALJ to assure the public is adequately protected. . - - . .. THEREFORE. l?l?lS HEREBY onoeneo: That the__license to practice medicine in the see of color-ado of Durand J. Kahler; 0.0., shall be bound by the terms and conditionsiset forth below: suseENsioN Respondent 'shall be suspended for a-period of six months to thirty (so) days after the effective date of this Order. During the period of suspension, Respondent shall perform no act defined as the practice of medicine in section 12-36-106, PROBATIONARY TERRIS I 8. Following thesis-{norm period of suspensioni-Respondent?s license shall be placed on probationary. status .jior a'period of ?ve years. . During the - pnobationary period. Respondent shall be bound by the terms and conditions 'set'forth below: .. I TREATMENT MONITORING C. During the probationary period. Respondent shall receiver-sum medical treatment as is determined- to be appropriate. by the Colorado Physician Health Program All instructions to Respondent by CPHP shall constitute terms of this Order. and must be complied with. Failure to comply with any such instruction shall constitute a violation of this Order._ CPHP Shall also ?Jl'iG?On as the ?H'eatment monitor" as that term is used in this Order. CPHP shall monitor Respondent's compliance with this Order in the following mannerRespondent shall physically meet with CPHP at least quarterly, and more frequently, if recommended by These meetings must be conducted. in person and may not be held via the telephone. . . I CPHP shall'detennine whether additional counseling, such as marriage counseling, - - is warranted. Any recommendations with respect to counseling shall . constitute aterm oithis.0rder. . . a . div-h; 3.. Respondent shall complete any as recommended . I 4. shall? submit-quarterly written reports to the monitoring" Panel of the Board. Each. report shall brie?y describe Respondent?s treatment with. CPHP. Each report shall also state whether Respondent is in. Compliance with this Order. If afgany time CPHP has reasonable cause to believe that Respondent has violated theiterms of . this Order, is unable to practice with skill and with. safety to patient?r or has committed unprofessional conduct as de?ned in cpl-{pit shall immediately inform themonitoring Panel. -. - Within. thirty (30) days of the effective date of this Order, Respondent shall complete 3? unresmded' re?ease' CPHP to disclose to?the Panel all privileged information concerning Respondent in its possession' including infon-nation generatEd by Other SOUFCBS- Any revocation of such release by Respondent shall constitute a violation of this Order; . 5- if at BUY-time that any Of the above requirements are no longer necessaryr CPHP mail petition the monitoring Panel to relax the above requirements. the Panel agreeS to such a relaxation. it'shall so infonn CPHP by written notice. Thereafter. Respondent may comply with this Order as set forth in that notice. .1- PRACTICE sat-mic - During the Pmba?Onal?Y perioc'. Respondent must either practice with one or more physicians. or must work with CPHP to develop a mentoring program to assist 'with the consultative and administrative responsibilities of Respondent?spractice. A solo practice - sets Respondent up to oventvork and assume too much responsibility. (reference Findings of Fact. paragraph 114) - PRACTICE MONITORING . During the probationary period. Respondent?s medical practice shall be monitored by a "practice monitor'. Prior to resuming-practice at the .end of the period" of suspension; Respondem mus-t have'a practice monitor by the monitoring Panel. The tespo?dent Shall nominatev in Writing. 3 proposed practice. monitor for the monitoring Panel's approval. The nominee?shall be a physician licensed by the Board. and currently Practicing medicine in Colorado. The nominee shall have no ?nancial interest in Respondent?s-j practice of medicine. - The nominee- must be knowledgeable in Respondent's area of. practice; If Respondent is "heard certi?ed in an area of practice. it Its preferred, but not required; that the nominee be board certi?ed bY'that same board, If the Respondent has at hospitals. it is prefer-red, but not required. that the nominee have privileges at as many of those same hospitals as-possible. The nominee shall not hate been disciplined by the Board. - ., Respondent?s nomination for practice monitor shall set forth how the nominee meets the above criteria. ?With the written nomination, Respondent shall submit a letter signed by the nominee as well as a current curriculum vitae of the nominee_' ?nte letter from the nominee shall contain a statement from the. nominee indicating. that the nominee has read this Order and understands and agrees to perfonn'_'the obligations set forth herein. The nominee must also state that the nominee can be fair and impartial in the review of the Respondent?s practiceThe practice monitor must?be approved before Respondent resUmes medical-brag? e. At such time as Respondent resumes. medicalypractice, the Shau- . perform:the_follbwing:_ -. -- . 3. .l practice-monitor shall. visit all the .o?t?cesj'at which Respondent practice?s least five-charts maintained by Respondent. The" practice- monitor shall make reasonable effort to: enshre that Respondent has no notice of which; charts will be selected for review..' The practice monitor is authorized to review such other medical records maintained-by Respondent as_the practice monitor deems appropriate.- - i . - 2. 'Each month the practice monitor shall review at least ?ve hospital charts of patients whom Respondent has admitted to hospitals. lf Respondent has admitted fewer than ?ve patients. the practice monitor shall review all the patients so admitted. if any. The practice monitor shall make reasonable efforts to ensure that Respondent has no notice of which charts will be selected for review. The practice monitor is authorized to review such other hoSpital charts as: the practice monitor deems appropriate. . - 3. The practice monitor shall submit quarterly written-i reports to the monitoring Panel. 4. The practice monitor?s report shall include the following: description of each of the cases reviewed; and b) 33 to Bad"! C356 fevtewed. the practice monitor?s opinion whether Respondent is practicing medicine in accordance with generally accepted standards of medical practice. - c) The practice monitor?must also state whether the charts reviewed contain the - Disclosure to Patients tom: as required-by this Order forth in paragraph belowstatement from the practice monitor whether each of'the- charts of female patients reviewed document the name of the chaperone in the patient?s chart for. each of?ce appointment. H. If at any time the practice monitor believes ReSpondent is not in: compliance with this Order. is unable. to practice with skill and safety to patients. or has otherwise committed unprofessional conduct as defined in section the-practice monitor shall immediately Panelthat: monitor?s reports are - timely. and complete. Failure of the practice monitor to Mom; the. dates set forth . above may result. in a notice from-Board staff requiring the nomination 'of a newpractice monitor- Upon noti?cations. Respondentshall nominate a new. practice monitor according to the procedures set forth above. Respondent shall. nominate the new monitor within thirty (30) days of such notice. Failure-to nominate a new monitor within thirty (30) days of such noti?cation shall constitute a viotation of this Order. J. Whenever Respondent is physically'present-with- a female patient in an outpatient I setting, a third person shall be continuously present as a chaperone. Respondent shall be responsiblefor arranging for the presence of the chaperonet. - if a patient is accompanied throughout the of?ce appointment by an adult member of the patients family. the chaperone- requirement shall be ful?lled for that patients visit. Respondent A .shall document: the._ name of the chaperone. in the patient?s?chart- for each: of?ce appointment.. biscLosune-neournEMENT . Respondent must disclose to his patients- that he has been sanctioned by the Board for some! boundary violations with patients- This disclosure is accomplished via a fon'n,_ to be approved by the monitoring'Panel. .The form must be approved by the monitoring Panel prior to Respondent?s return to medical practice following theiperiod of suspension. The form must include the followingThe form shall be titled as? follows: Disclosure to Patients of Sexual Boundary Violations. - - That Respondent has been sanctioned by the Board for sexual boundary violations with patients. - . . - . 3.- That a copy of_ the Board's Order may be obtained by contacting the Board of?ce and include the Board's address. telephone number. and email address. 4. That any concerns regarding Respondent's conduct should be reported to the Board. 5. An acknowledgement statement that the patient has been given an opportunity to read this form and a space for the patient's signature and date of signature. of the patient?s medical record. our OF STATE PRACTICE . ReSpondent may wish to leave Colorado and practice in another state. At any time. whether to practice out of state. or for any other reason. Respondent may request that the Board place Respondent?s. license on inactive status as set forth in section-126$ 137. C.R.S. Upon the approval of such request. Respondent may cease to compiy with the provisions of-this Order. Failure to comply with any of these proiyjsions. while inactive. shall not constitute a violation of this Order. Unless Respondent's license is inactive} Respondent must comply with all' provisions of this?order. The probationary period will be tolled for any period of time Respondent's license is inactive. .. Respondent may resume the'active practice of?medicine at any time as set?forth in section C.R.S. With such requests. Respondent shall nominate a-practice monitor as provided above. Respondent shall be permitted to resume the active practice - of medicine only after approval of the practice monitor. At such time as Respondent resumes the active practice of medicine. all other terms and conditions. of this Order shall be in effect . . I TERMINATION 0F PROBATION . Upon expiration of the probationary periodeespondent may request restoration of Respondent?s license to unrestricted status. if Respondent has complied with the terms of probation. and if Respondent?s probationary period has not been tolled, such relief shall be granted bythe monitoring Panel in the form of written notice. - 2 ?programs P. Within ?fteen (15) days of the effective date of this Order, Respondent shall report to the Board any current hospital?privileges. Respondent; shall also report to the Board, within 15.days.'of' receipt, any new hOSpital privileges SO that the, Board may notify the hospital pursuant to section 12-36-1 C.R.S. - . . Q. All costs and expenses incurred by Respondent'to comply with thisOrder shall be the sole responsibility of Respondent and shall in no way be the obligation of the Board, the Hearings Panel or the monitoring Panel. This Order becomes effective upon signature by the Hearings Panel members. This decision becomes ?nal upon mailing. Any party adversely affected or aggrieved by any agency action may commence an action for judicial review before the Court Of Appeals within forty-?ve (45) days-after such action becomes effective.? Reference Sections. 24440601) and 12-36-119, C.R.S. - . Dated and signed this day of 2001. FOR THE COLORADO STATE BOARD OF MEDICAL HEARINGS PANEL A . . . 24 it. zen BEFORE THE for? OSTEOPATHIC NIEDICAL BOARD OF CALIFORNIA DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA In the Matter of the Accusation Against: C353 NO- 163013-3754 DURAND JAE KAHLER, D.O. . [om Code, ?11520] OSTEOPATI-IIC AND CERTIFICATE NO. 20A45 78 RESPONDENT. On July 22, 2013, an employee of the Osteopathic Medical Board of California (Board) sent by certified mail a copy of Accusation No. 16-2013-3764, Statement to-Respondent, Notice of Defense in blank, copies of the relevant sections of the California Administrative Procedure Act as required by sections 11503 and 11505 of the Government Code, and a request for discovery, to Durand Jae Kahle'r, D.O. (Respondent) at his address of record with the Board, 118 S. 3rd Ave., Sterling, CO 80751, as well as to another address associated with Respondent, 410 Melba Road, Sterling, CO 80751. The green certi?ed mail receipt for the package addressed to the 3rd Avenue address of record was signed by Respondent. (Accusation package, proof of service, return receipt, Exhibit Package, Exhibit There was no response to the Accusation. on September 6, 2013, an employee of the Attorney General?s Of?ce sent by certified and regular mail addressed to Respondent at both addresses set forth above a courtesy Notice of Default, advising Respondent of the service Accusation, and providing him with an opportunity to request relief from default. The green certified mail receipt was signed by Respondent. (Exhibit Package, Exhibit 2, Notice of Default, proof of service, return receipt.) 1 The evidence in support of this Default Decision and Order is submitted herewith as the ?Exhibit Package.? Default Decision and Order Respondent has not responded to service of the Accusation or the Notice of Default. He has not ?led a Notice of Defense. As a result, Respondent has waived his right to a hearing on the merits to contest the allegations contained in the Accusation. FINDINGS OF FACT 1. Angelina M. Burton is the Executive Director of the Board. The charges and allegations in the Accusation were at all times brought and made solely in the official capacity of the Board?s Executive Director. I II. On August 5, 1980, Osteopathic Physician?s and Surgeon?s License No. 20A4578 was issued by the Board to Durand Jae Kahler, D.O.. The certificate is delinquent, having expired on March 31, 2009. (Exhibit Package, Exhibit 3, license certification.) HI. On July 22, 2013, Respondent was served with an Accusation, alleging causes for discipline against Respondent. The Accusation and accompanying documents were duly served on Respondent. A Courtesy Notice of Default was thereafter served on Respondent. Respondent failed to file a Notice of Defense. IV. The allegations of the Accusation are true as follows: On February 19, 2013, the Colorado Medical Board issued a Stipulation and Final Agency Order regarding Respondent?s license to practice in Colorado. The Colorado Board noted that Respondent?s license was previously disciplined for multiple sexual boundary violations with three patients. The Stipulation and Final Agency Order was based on allegations that Respondent engaged in a sexual relationship with a patient in 2012. Under the terms of the Stipulation and Final Agency Order, Respondent permanently relinquished his Colorado license. A copy of the Stipulation and Final Agency Order issued by the Colorado Medical Board is attached to the Accusation, Exhibit Package, Exhibit 1. Default Decision and Order V. The Board ?nds that pursuant to Business and Professions Code section 125.3 the costs of investigation and enforcement of the case prayed for in the Accusation total $510.00, based on the Certi?cation of Costs, attached hereto as Exhibit 4. DETERMINATION OF ISSUES Pursuant to the foregoing Findings of Fact, Respondent?s conduct and the action of the Colorado Medical Board constitute cause for discipline the meaning of Business and Professions Code sections 2305 and 141(a). The Board ?nds that pursuant to Business and Professions Code section 125.3 the costs of investigation and enforcement of the case prayed for in the Accusation total $510.00. DIS CIPLINARY ORDER Osteopathic Physician's and Surgeon?s License No. 20A457B issued to Durand Jae Kahler, DD. is hereby REVOKED. Respondent is ordered to pay $510.00 in costs, payable to the OsteoPathic Medical Board of California. I Respondent shall not be deprived of making a request for relief from default as set forth in Government Code section 11520(c) for good cause shown. However, such showing must he made in writing by way of emotion to vacate the default decision and directed to the Osteopathic Medical Board of California at 1300 National Drive, Suite 150, Sacmmento, CA 95834 seven (7) days of the service of this Decision. This Decision will become effective 3 2013 It is so ordered on WWMM 2013. OSTEOPATI-HC MEDICAL BOARD OF CALIFORNIA DEPARTMENT OF CONSUMER AFFAIRS STATE OF By Default Decision and Order meadow-[hm BEFORE THE OSTEOPATHIC MEDICAL BOARD OF CALIFORNIA DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA In the Matter of the Accusation Against, C353 NO- 15-2013-3764 EXHIBITS IN SUPPORT OF DEFAULT DECISION AND ORDER DURAND JAE KAHLER, D.O. AND LICENSE No. . [Gov. Code, ?115201 20A4578 RESPONDENT. EXHIBIT 1 Accusation, Proof of Service, Return Receipt EXHIBIT 2 Courtesy Notice of Default; Proof of Service, Return Receipt; EXHIBIT 3 License Certification EXHIBIT 4 Cost Recovery? Certi?cation Exhibits in Support of Default Decision and Order EXHIBIT 1 KAMALA D. HARRIS Attorney General of California JOSE R. GUERRERO i Supervising Deputy Attorney General JANE ZACK SIMON JUL Airy-H Deputy Attorney General State 1331? N0. 1 - . 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102?7004 Telephone: (415) 703?5544 Facsimile: (415) 703-5480 E?mail: anezack.simon@doj.ca. gov Attorneys for Complainant Osteopathic Medical Board Of California BEFORE THE I - OSTEOPATI-IIC MEDICAL BOARD OF CALIFORNIA DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA 1n the Matter of the Ac'cusation Against: Case NO. 16-201 3-3 764 DURAND JAE KAHLER, 118 8. 3rd Ave. Sterling, CO 30751 ACCUSATION Osteopathic Physician's and Surgeon's License No. 20A45 78 Respondent. The Complainant alleges: PARTIES 1. Angelina M. Burton (Complainant) brings this Accusation solely in her of?cial capacity as the Executive Director of the Osteopathic Medical Board of California, Department of Consumer Affairs. 2. On August 5, 1980, the Osteopathic Medical Board of California issued Osteopathic Physician?s and Surgeon's License Number 20A4578 to Durand Jae Kahler, D.O. (Respondent). The Osteopathic Physician's and Surgeon's license is delinquent, having expired on March 31, 2009. I Anniisatinn JURISDICTION 3. This Accusation is brought before the Osteopathic Medical Board of California (Board), Department of Consumer Affairs, under the authority of the following laws. All section references are to the Business and Professions Code unless otherwise indicated. A. Section 3600 of the Code states that the law governing licentiates of the Osteopathic Medical Board of California is found in the Osteopathic Act and in Chapter 5 of - Division 2, relating to medicine. B. Section 3600?2 of the Code states: "The Osteopathic Medical Board of California shall enforce those portions of the Medical Practice Act identi?ed as Article 12 (commencing with Section 2220), of Chapter 5 of Division 2 of the Business and Professions Code, as now?existing or hereafter amended, as to persons who hold certi?cates subject to the jurisdiction of the Osteopathic Medical Board of California, however, persons who elect to practice using the term or suffix as provided in Section 2275 of the Business and Professions Code, as now existing or hereafter amended, shall not be subject to this section, and the Medical Board of California shall enforce the provisions of the article as to persons who make the election. After making the election,_each person so electing shall apply for renewal of his or her certi?cate to the Medical Board of California, and the Medical Board of California shall issue renewal certi?cates in the same manner as other renewal certi?cates are issued by i C. Section 2305 of the Code provides, in part, that the revocation, suspension, or other discipline, restriction or limitation imposed by another state upon a license to practice medicine issued by that state, that would have been grounds for discipline in California under the Medical Practice Act, constitutes grounds for discipline for unprofessional conduct. D. Section 141 of the Code provides: For any licensee holding a license issued by a board under the jurisdiction of a department, a disciplinary action taken by another state, by any agency of the federal government, or by another for any act substantially related to the practice regulated by the California license, may be ground for disciplinary action by the reSpective state licensing board. A certi?ed copy of the record of the disciplinary action taken against the licensee by another state, an agency of the federal government, or by another country shall be conclusive evidence of the events related therein. Nothing in this section shall preclude a board from applying a speci?c statutory provision in the licensing act administered by the board that provides for discipline based upon a disciplinary action taken against the licensee by another state, an agency of the federal government, or another country.? in.) ?rmicnfinn 4. Section 125 .3 of the Code states, in pertinent part, that the Board may request the administrative law judge to direct a licentiate found to have committed a violation or violations of the licensing act to pay a sum not to exceed the reasonable costs of the investigation and enforcement of the case. CAUSE FOR DISCIPLINE (Discipline, Restriction, or Limitation Imposed by Another State) 5. On February 19, 2013, the Colorado Medical Board issued a Stipulation and Final Agency Order regarding Respondent?s license to practice in Colorado. The Colorado Board noted that Respondent's license was previously disciplined for multiple sexual boundary violations with three patients. The Stipulation and Final Agency Order was based on allegations that Respondent engaged in a sexual relationship with a patient in 2012. Under the terms of the Stipulation Final Agency Order, Respondent permanently relinquished his Colorado license. A copy of the Stipulation and Final Agency Order issued by the Colorado Medical Board is attached as Exhibit A. I I 6. Respondent?s conduct and the actions of the Colorado Medical Board as set forth in paragraph 5, above, constitute unprofessional conduct within the meaning of section 2305 and conduct subject to discipline within the meaning of section 141 PRAYER WHEREFORE, Complainant requests that a hearing be held on the matters herein alleged, and that following the hearing, the Osteopathic Medical Board of California issue a decision: 1. Revolcing or suspending Osteopathic Physician?s and Surgeon's License Number 20A4578, issued to Durand Jae Kahler, DO. 2. Revoking, suspending or denying approval of Respondent's authority to supervise physician assistants; 3. Ordering ReSpondent. to pay the Osteopathic Medical Board of California the reasonable costs of the investigation and enforcement of this case, pursuant to Business and Professions Code section 125.3; Anmmatinn 4. Ordering Respondent to pay the Osteopathic Medical Board of California the reasonable costs of probation monitoring, if he is placed on probation; and 5. Taking such other and further action as deemed necessary and proper. DATED: 543; 30/3 SF2013405031 40732744.doc ANGELINA M. BURTON Executive Director Osteopathic Medical Board of California Department of Consumer Affairs State of California Complainant Accusation EXHIBIT A BEFORE THE COLORADO MEDICAL BOARD STATE OF COLORADO CASE NO. 2012-5724-B STIPULATION AND FINAL AGENCY ORDER IN THE MATTER OF THE DISCIPLINARY PROCEEDING REGARDING THE LICENSE TO PRACTICE MEDICINE IN THE STATE OF COLORADO OF DURAND l. KAI-ILER, D.O.3 LICENSE NUMBER DR 0021739, Respondent. IT IS HEREBY and agreed by and between Inquiry Panel (?Panel?) of the Colorado Medical Board (?Board?) and Durand I . Kahler, D.O. (?Respondent?) (collectively ?the Parties?) as follows: JURISDICTION AND CASE HISTORY 1. Respondent was licensed to practice medicine in the state of Colorado on July 11, 1978 and was issued license number DR 0021739a which Reapondent has held continuously since that date. - - 2. The Panel and the Board have jurisdiction over Reapondent and over the subject matter of this proceeding. 3. Reapondent?s medical license was disciplined by the Board on January 11, 2001 for multiple sexual boundary violations with three patients. Pursuant to a 2001 Final Agency Order ReSpondent?s license was suspended for six months, followed by a probationary term of five years. ReSpondent completed the terms of the Final Agency Order. 4. On or about September 11,2012, the Parties entered into an Interim Cessation of Practice Agreement (?Interim Agreement") in lieu of summary suspension pursuant to Section (IRS. The Parties entered the Interim Cessation of Practice Agreement following the Board?s review of information that Respondent engaged in sexual acts with a patient in 2012. This Interim Agreement remains in effect until such time as a Final Board Order becomes effective in this case. 5. On October 18, 2012, the Panel reviewed case numbers 2012-5329-13 8: 2012? 5724?13 and determined that further proceedings by formal complaint were warranted pursuant to Section 12-36-] C.R.S. 6. It is the intent of the parties and the purpose of this Stipulation and Final Agency Order (?Order?) to provide for a settlement of all matters set forth in case numbers 2012-5329-13 a. 2012-5724-13, without the necessity of holding a formal disciplinary hearing. This Order constitutes the entire agreement between the parties, and there are no other agreements or promises, written or oral, which modify, interpret, construe or affect this Order. 7. Respondent understands that: a. Respondent has the right to be represented by an attorney of the Reapondent?s choice and Respondent is represented by counsel; b. ReSpondent has the right to a formal complaint and disciplinary hearing pursuant to Section 12?36-1 1 o. By entering into this Order, Respondent is knowingly and voluntarily giving up the right to a hearing, acknowledges the factual basis as recited in this Order, and relieves the Panel of its burden of proving such facts; d. ReSpondent is knowingly and voluntarily giving up the right to present a defense by oral and documentary evidence, and to cross-examine witnesses who would testify on behalf of the Panel; e. Respondent is lmowingly and voluntarily waiving the right to seek judicial review of this Order. FACTUAL BASIS 8. ReSpondent acknowledges and the Panel finds that, if the Panel were to prove the following factual allegations at hearing, it would constitute a prima facie case of unprofessional conduct as de?ned in the Medical Practice Act, and would subject Respondent to discipline. Respondent denies these allegations. a. ReSpondent treated Patient A from August of 2011 through June 21, 2012 for anxiety and depression. . b. Respondent engaged in multiple sexual acts with Patient A from May 21, 2012, following an appointment for medical treatment, through August 12, 2012. . c. On June 21, 2012, ReSpondent told Patient A that Patient A must not inform the Board about the sexual relationship between Respondent and Patient A. Respondent, through provision of medical treatment to Patient A, was in a position of trust vis?a?vis Patient A. Through a sexual relationship with Patient A, Respondent violated Patient A?s trust. e. Respondent, through a sexual relationship with Patient A, demonstrated disregard for the possibility of serious negative consequences to Patient A, in eontravention of his professional responsibility and Board policy 10-] 2. 9. Respondent admits and the Panel finds that the acts and/or omissions described in the factual basis above, if proven, would constitute unprofessional conduct pursuant to section 12-36?1 C.R.S., which states: "Unprofessional conduct" as used in this article means: Engaging in a sexual act with a patient during the course of patient care or within six months immediately following the termination of the licensee's professional relationship with the patient. ?Sexual act?, as used in this paragraph means sexual contact sexual intrusion, or sexual penetration as de?ned in section 18?3?40], C.R.S. 10. Based upon the above, the Panel is authorized by Section 12-36- llS(S)(g)(Ill), C.R.S. to order conditions upon Respondent?s practice that it deems appropriate. PERMANENT RELINQUISHMENT OF LICENSE ll. Commencing on the effective date of this Order, Reapondent?s license to practice medicine in the State of Colorado is permanently relinquished. Respondent understands and acknowledges that he is permanently relinquishing a license to practice medicine in Colorado. Respondent agrees not to apply for reactivation, reinstatement or issuance of a new license to practice medicine in Colorado at any time in the future. Respondent speci?cally waives any right to which he may be entitled pursuant to Section 12~ C.R.S. regarding application for licensure. 12. Following relinquishnient of Respondent?s license, Respondent shall perform no act requiring-a license issued by the Board, nor shall?Respondent perform? any act in.any.. . .. other location pursuant to the authority of a license to practice medicine granted by the state of Colorado. OTHER TERMS 13. The terms of this Order were mutually negotiated and determined. 14. Both. parties acknowledge that they understand the legal consequences of this Order; both parties enter into this Order voluntarily; and both parties agree that no term or condition of this Order is unconscionable. 15. All costs and expenses incurred by Respondent to comply with this Order shall be the sole responsibility of Respondent: and shall in no way be the obligation of the Board or Panel. 16. So that the Board may notify hospitals of this agreement pursuant to Section 1236-11803), C.R.S., Respondent presently holds privileges at or is employed by the following hDSpitals: one. 17. This Order and all its terms shall have the same force and effect as an order entered after a formal hearing pursuant to section except 3 that it may not be appealed. This Order and all its terms also constitute a valid board order for purposes of section 12-36?1 C.R.S. 18. This Order shall be admissible as evidence at any future hearing before the Board. 19. lnvalidation Of any portion of this Order by judgment or court order shall in no way affect any other provision, which shall remain in full force and effect. 20. During the pendency of any action arising out of this Order, the obligations of the parties shall be deemed to be in full force and effect and shall not be tolled. This Order shall be effective upon'app'roval' by the Panel and signature by a Panel member or other authorized person. Respondent acknowledges that the Panel may choose not to accept the terms of this Order and that if the Order is not approved by the Panel and signed by a Panel member or other authorized person, it is void. 22. Upon becoming effective, this Order shall be open to public inepection and shall be publicized pursuant to the Board?s policies and procedures. Additionally, this Order shall be reported to the Federation of State Medical Boards, the National Practitioner Data Banldl-lealthcare Integrity and Protection Data Bank and as otherwise required by law. Durand l. THE was acknowledge efore me this 93; day - 2013, by Durand l. Kahler, 11,310: in the County of . State of .5. 5" it i tum-rath . scram ensue NOEYPUBLIC . arms or COLORADO some ID 20094025333 MY GWSSION WIRES AUG. 10. 2013 Commission expiration date THE FOREGOING Stipulation and Final Agency 'der is approved and effective this Eda}! oi" ., 2013. R??ira COLORADO MEDICAL BOARD ourar PANEL Maw? 5. 8m Rind)wa +or I I ha?ug APPROVED AS TO FORM: FOR RESPONDENT l7? Yfiotoria E. Lox??to, E'sql. Silver 8: DeBoskey, PC. Attorneys for Durand . Kahler, DO. 1801 York Street Denver, Colorado 80206 Telephone: 303?399?3000 FOR THE COLORADO MEDICAL BOARD JOHN W. Attorney General Eric Max?eld . First Assistant A General* Business and Lice ing Section Attorneys for the olorado Medioal Board Inquiry Panel . . . 1525 Sherman Street, 7th Floor Denver, Colorado 80203 Telephone: (303) 866?4579 FAX: (303) 866?5395 *Counsel of Record KAMALA D. HARRIS Attorney General of California Jose R. GUERRERO Supervising Deputy Attorney General ANE ZACK SIMON Deputy Attorney General State Bar No. 116564 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 703-5544 Facsimile: (415) 703?5480 E-mail: anezack.si1non@doj.ca.gov Attorneys for Complainant Osteopathic Medical Board Of California BEFORE THE OSTEOPATHIC MEDICAL BOARD OF CALIFORNIA DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA In the Matter of the Accusation Against: I Case No. 16-2013?3764 DURAND JAE KAHLER STATEMENT TO RESPONDENT 118 8. 3rd Ave. - Sterling CO 80751 [Gov. Code 11504, 11505(b)] Osteopathic Physician's and Surgeon?s License No. 20A4578 Respondent. TO RESPONDENT: Enclosed is a copy of the Accusation that has been ?led with the Osteopathic Medical Board of California of the Department of Consumer Affairs (Board), and which is hereby served on you. Unless a written request for a hearing signed by you or on your behalf is delivered or mailed to the Board, represented by Deputy Attorney General Jane Zack Simon, within ?fteen (15) days after a copy of the Accusation was personally served on yOu or mailed to you, you Will be deemed to have waived your right to a hearing in this matter and the Board may proceed upon the Accusation without a hearing and may take action thereon as provided by law. TO PRPON DENT ix.) The request for hearing may be made by delivering or mailing one of the enclosed forms entitled ?Notice of Defense," or by delivering or mailing a Notice of Defense as provided in I section 11506 of the Government Code, to Jane Zack Simon Deputy Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, California 94102 You may, but need not, be represented by counsel at any or all stages of these proceedings. The enclosed Notice of Defense, if signed and ?led with the Board, shall be deemed a speci?c denial of all parts of the Accusation, but you will not be permitted to raise any objection to the form of the Accusation unless you ?le a further Notice of Defense as provided in section 11506 of the Government Code within ?fteen (15) days after service of the Accusation on you. If you ?le any Notice of Defense within the time permitted, a hearing will beheld on the charges made in the. Accusation. The hearing may be postponed for good cause. lfyou have good cause, you are obliged to notify the Of?ce of Administrative Hearings, 1515 Clay Street, Suite 206, Oakland, CA 94612, within ten (10) working days after you discover the good cause. Failure to notify the Of?ce of Administrative Hearings within ten (10) days will deprive you of a postponement. Copies of sections 11507.5, 11507.6, and 11507.7 ofthe Government Code are enclosed. If you desire the names and addresses of witnesses or an opportunity to inspect and copy the items mentioned in section 11507.6 of the Government Code in the possession, custody or control of the Board you may send a Request for Discovery to the above designated Deputy Attorney General. NOTICE REGARDING STIPULATED SETTLEMENTS It may be possible to avoid the time, expense and uncertainties involved in an administrative hearing by disposing of this matter through a stipulated settlement. A stipulated settlement is a binding written agreement between you and the government regarding the matters charged and the discipline to be imposed. Such a stipulation would have to be approved by the 2 STATEMENT TO RESPONDENT OsteOpathic Medical Board of California but, once approved, it would be incorporated into a final order. Any stipulation must be consistent with the Board's established disciplinary guidelines; hoWever, all matters in mitigation or aggravation will be considered. A copy of the Board's Disciplinary Guidelines will be provided to you on your lmitten request to the state agency bringing this action. If you are interested in pursuing this alternative to a formal administrative hearing, or if you have any questions, you or your attorney should contact Deputy Attorney General Jane Zack Simon at the earliest opportunity. Dated: July 15, 2013 KAMALA D. HARRIS Attorney General of California Jose R. GUERRERO Supervising Deputy Attorney General inixi CK SI on De uty ey General ?34+ I'neysfor Complainant SF2013405031 statement to STA TEMENT TO RESPONDENT KAMALA D. HARRIS Attorney General of California 0313: R. Gueaasao Supervising Deputy Attorney General JANE ZACK. SIMON Deputy Attorney General State Bar No. 116564 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 70345544 Facsimile: (415) 703-5480 E-mail: anezack.simon@doj.ca. gov Attorneys for Complainant Osteopathic Medical Board Of California BEFORE THE OSTEOPATHIC MEDICAL BOARD OF CALIFORNIA DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA In the Matter of the Accusation Against: DURAND JAE DD. 118 S. 3rd Ave. Sterling, CO 80751 Case No. 16-2013-3764 REQUEST FOR DISCOVERY OsteOpathic Physician?s and Surgeon's License No. 20A4578 Respondent. TO RESPONDENT: Under section 11507.6 of the Government Code of the State of California, parties to an administrative hearing, including the Complainant, are entitled to certain information concerning the opposing party's case. A copy of the provisions of section 11507.6 of the Government Code concerning such rights is included among the papers served. PURSUANT TO SECTION 11507.6 OF THE GOVERNMENT CODE, YOU ARE HEREBY REQUESTED TO: 1. Provide the names and addresses of witnesses to the extent known to the ReSpondent, including, but not limited to, those intended to be called to testify at the hearing, and 2. Provide an opportunity for the Complainant to inSpect and make a copy of any of the following in the possession or custody or under control of the Respondent: 1 a. A statement of a person, other than the Respondent, named in the initial administrative pleading, or in any additional pleading, when it is claimed that the act or omission of the Respondent as to this person is the basis for the administrative proceeding; b. A statement pertaining to the subject matter of the proceeding made by any party to another party or persons; c. Statements of witnesses then proposed to be called by the Respondent and of other persons having personal knowledge of the acts, omissions or events which are the basis for the proceeding, not included in or above; d. All writings, including but not limited to reports of mental, physical and blood examinations and things which the Respondent now preposes to offer in evidence; e. . Any other writing or thing which is relevant and which would be admissible in evidence, including but not limited to, any patient or hOSpitai records pertaining to the persons named in the pleading; f. Investigative reports made by or on behalf of the Respondent pertaining to the subject matter of the proceeding, to the extent that these reports (1) contain the names and addresses of witnesses or of persons having personal knowledge of the acts, omissions or events which are the basis for the proceeding, or (2) re?ect matters perceived by the investigator in the course of his or her investigation, or (3) contain or include by attachment any statement or writing described in to inclusive, or surrunary thereof. For the purpose of this Request for Discovery, "statements" include written statements by the person, signed, or otherwise authenticated by him or her, stenographic, mechanical, electrical or other recordings, or transcripts thereof, of oral statements by the person, and written reports or summaries of these oral statements. RFOI TEST FOR DISCOVERY YOU ARE HEREBY FURTHER NOTIFIED that nothing in this Request for Discovery should be deemed to authorize the inspection or copying of any writing or thing which is privileged from disclosure by law or otherwise made con?dential or protected as attorney's work product. Your response to this Request for Discovery should be directed to the undersigned attorney for the Complainant at the address on the ?rst page of this Request for Discovery within 30 days after service of the Accusation. Failure without substantial justi?cation to comply with this Request for Discovery may subject the Respondent to sanctions pursuant to sections 11507.7 and 11455.10 to 11455.30 of the Government Code. Dated: July 15, 2013 KAMALA D. HARRIS Attorney General of California 0 ss R. GUERRERO . Supervising Deputyr Attorney General IMON epu Adm-{23y neral Afton eysfor om Zainant SF2013405031 40732742.doc RFDI FEST FOR DIS COVERY BEFORE THE OSTEOPATHIC MEDICAL BOARD OF CALIFORNIA DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA In the Matter of the Accusation Against: DURAND JAE ICAHLER, no. 118 s. 3rd Ave. Sterling, co 30751 Osteopathic Physician's and Surgeon's License No. 20A4578 ReSpondent. Case No. 16?2013?3764 NOTICE OF DEFENSE [Gov. Code 11505 and 11506] I, the undersigned Respondent in the above-entitled proceeding, hereby acknowledge receipt of a copy of the Accusation; Statement to Respondent; Government Code sections 11507.5, 11507.6 and 11507.7, Complainant?s Request for Discovery; and two copies of a Notice of Defense. I hereby request a hearing to permit me to present my defense to the charges contained in the Accusation. Dated: Respondent?s Name: ReSpondent?s Signature: ReSpondent?s Mailing Address: City, State and Zip Code: Respondent? 5 Telephone: Respondent's Fax: Respondent's E?mail Check appropriate box: 1 am represented by counsel, whose name, address and telephone number appear below: Counsel?s Name Counsel?s Mailing Address City, State and Zip Code Counsel's Telephone: Counsel's Fax: Counsel's E-mail: I am not now represented by counsel. If and when counsel is retained, irrnnediate noti?cation of the attorney?s name, address and telephone number will be ?led with the Of?ce of Administrative Hearing and a copy sent to counsel for Complainant so that counsel will be on record to receive legal notices, pleadings and other papers. The agency taking the action described in the Accusation may have formulated guidelines to assist the administrative law judge in reaching an appropriate penalty. You may obtain a copy of the guidelines by requesting them from the agency in writing. SF2013405031 40732742DOC BEFORE THE OSTEOPATHIC MEDICAL BOARD OF CALIFORNIA DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA 1n the Matter of the Accusation Against: Case No. 16-2013-3764 DURAND JAE KAHLER, DD. 1 13 3' 3rd NOTICE OF DEFENSE Sterling, CO 80751 [Gov. Code 11505 and 11506] Osteopathic Physician's and Surgeon's License No. 20A4578 ReSpondent. I, the undersigned Respondent in the above?entitled proceeding, hereby acknowledge receipt of a copy of the Accusation; Statement to Respondent; Government Code Sections 11507.5, 11507.6 and 11507.7, Complainant?s Request for Discovery; and two copies ofa Notice of Defense. I hereby request a hearing to permit me to present my defense to the charges contained in the Accusation. I Dated: Respondent?s Name: Respondent's Signature: - Respondent?s Mailing Address: City, State and Zip Code: ReSpondent?s Telephone: Reapondent's Fax: Respondent's E?mail Check appropriate box: 1 am represented by counsel, whose name, address and telephone number appear below: Counsel? 3 Name Counsel?s Mailing Address City, State and Zip Code Counsel?s Telephone: Counsel's Fax: Counsel's E-mail: 1 am not now represented by counsel. If and when counsel is retained, immediate noti?cation of the attorney?s name, address and telephone number will be ?led with the Of?ce of Administrative Hearing and a copy sent to counsel for Complainant so that counsel will be on record to receive legal notices, pleadings and other papers. The agency taking the action described in the Accusation may have formulated guidelines to assist the administrative law judge in reaching an appropriate penalty. You may obtain a copy of the guidelines by requesting them from the agency in writing. 8172013405031 40732742DOC COPY OF GOVERNMENT CODE SECTIONS 11507.5, 11507.6 AND 11507.7 PROVIDED PURSUANT TO GOVERNMENT CODE SECTIONS 11504 AND 11505 SECTION 11507.5: Exclusivity of discovery provisions The provisions of Section 1 1507.6 provide the exclusive right to and method of discovery as to any proceeding governed by this chapter. SECTION 11507.6: Request for discovery After initiation of a proceeding in which a respondent or other party is entitled to a hearing on the merits, a party, upon written request made to another party, prior to the hearing and within 30 days after service by the agency of the initial pleading or within 15 days after the service [if an additional pleading, is entitled to obtain the names and addresses of witnesses to the extent known to the other party, including, but not limited to, those intended to be called to testify at the, hearing, and (2) inspect and make a copy of any of the following in the possession or custody or under the control of the other party: A statement of a person, other than the reSpondent, named in the initial administrative pleading, or in any additional pleading, when it is claimed that the act or omission of the respondent as to this person is the basis for the administrative proceeding; A statement pertaining to the subject matter ofthe proceeding made by any party to another party or person; Statements of witnesses then proposed to be called by the party and of other persons having personal knowledge of the acts, omissions or events which are the basis for the proceeding, not included in or above; All writings, including, but not limited to, reports of mental, physical and blood examinations and things which the party then proposes to offer in evidence; Any other writing or thing which is relevant and which would be admissible in evidence; Investigative reports made by or on behalf of the agency or other party pertaining to the subject matter of the proceeding, to the extent that these reports (1) contain the names and addresses of witnesses or of persons having personal knowledge of the acts, omissions or events which are the basis for the proceeding, or (2) re?ect matters perceived by the investigator in'the course of his or her investigation, or (3) contain or include by attachment any statement or writing described in to inclusive, or summary thereof. For the purpose of this section, "statements" include written statements by the person signed or otherwise authenticated by him or her, steno graphic, mechanical, electrical or other recordings, or transcripts thereof, of oral statements by the person, and written reports or surmnaries of these oral statements. Nothing in this section shall authorize the inSpection or copying of any writing or thing which is privileged from disclosure by law or otherwise made confidential or protected as the attorney's work product. SECTION 11507.7: Petition to compel discovery; Order; Sanctions Any party claiming the party's request for discovery pursuant to Section 11507.6 has not been complied with may serve and file with the administrative law judge a motion to compel discovery, naming as respondent the party refusing or failing to comply with Section 11507.6. The motion shall state facts showing the reSpondent party failed or refused to comply with Section 11507.6, a description of the matters sought to be discovered, the reason or reasons why the matter is discoverable under that section, that a reasonable and good faith attempt to contact the reSpondent for an informal resolution of the issue has been made, and the ground or grounds of respondent's refusal so far as known to the moving party. The motion shall be served upon reapondent party and ?led within 15 days after the respondent party/?rst evidenced failure or refusal to comply with Section 11507.6 or within 30 days after request was made and the party has failed to reply to the request, or within another time provided by stipulation, whicheVer period is longer. The hearing on the motion to compel discovery shall be held within 15 days after the motion is made, or a later time that the administrative lawjudge may on the judge's own motion for good cause determine. The respondent party shall have the right to serve and ?le a written answer or other response to the motion before or at the time of the hearing. Where the matter sought to be discovered is under the custody or control of the reSpondent party and the respondent party asserts that the matter is not a discoverable matter under the provisions of Section 11507.6, or is privileged against disclosure under those provisions, the administrative law judge'may order lodged with it matters provided in subdivision (if Section 915 of the Evidence Code and examine the matters in accordance with its provisions. The administrative law judge shall decide the case on the matters examined in camera, the papers ?led by the parties, and such oral argument and additional evidence as the administrative law judge may allow. Unless otherwise stipulated by the parties, the administrative law judge shall no later than 15 days after the hearing make its order denying or granting the motion. The order shall be in writing setting forth the matters the moving party is entitled to discover under Section 11507.6. A copy of the order shall forthwith be served by mail by the administrative law judge upon the parties. Where the order grants the motion in whole or in part, the order shall not become effective until 10 days after the date the order is served. Where the order denies relief to the moving party, the order shall be effective on the date it is served. 40732742DOC 8172013405031 DECLARATION OF SERVICE BY CERTIFIED MAIL AND FIRST CLASS MAIL (Separate Mailings) In the Matter of the Accusation Against: Durand Jae Kahler, D.O. Case No: 15-2013-3764 I, the undersigned, declare that I am over 18 years of age and not a party to the within cause; my business address is 1300 National Drive,.Suite 150, Sacramento, CA 95834. On July 22, 2013, I served the attached Accusation, Statement to Respondent. Request for Discovery, Notice of Defense (two copies), and the Government Code Sections 11507.5, 11507.6 and 11507.7, by placing a true copy thereof enclosed in a sealed envelope as certified mail with postage thereon fully prepaid and return receipt requested, and another true copy of the Accusation, Statement to Respondent, Request for Discovery, Notice of Defense (two copieS),and the - Government Code Sections 11507.5, 11507.6 and 11507.7, as enclosed in a second sealed enveIOpe as ?rst class mail with postage thereon fully prepaid, in the internal mail collection system at the Of?ce of the Osteopathic Medical Board of California addressed as follows: NAME . (certi?ed and regular mail) Durand Jae Kahler, D.O. Certified Mail No: 410 Melba Road - 7012 1010 0001 2217 7473 Sterling-CO 80751 Durand Jae Kahler, D.O. Certi?ed Mail No: 118 3 3rd Avenue 7012 2920 0000 1156 8888 Sterling/11008075 .. . .. . I Complete Items 1. 2, and 3. Also complete I declare Under pg item 4 if Restricted Delivery is desired. . . ll Print your name and address on the reverse TO FBQOIRQ IS true so that we can return the card to you. 5. Received Name) Cia??luacwgw '1 II Attach this card to the back of the mailpiece, - acramento? call' or on the front if space permits. A Cl Agent Addresses D. is deiivery address different from Item 1? 1. Article Addressed to: If YESI emer dauvew address below: No Durand Jae Kahler, D.O. Steve 118 3 3rd Avenue Dec; Sterling, CO 3. Se IceType I gE/B?i??d Mall E3 Ext-7m? dl I Registered Return Receipt for Merci-Ian se . V. CC: Jane zaCk Insured Mail [3 0.0.0. 4. Restricted {Extra Fee) Cl Yes 2. Article NUmher (Trensferfromservicelabt E?lEl] UDUU liltSl: PS Form 3311 . February 2004 Domestic Return Receipt 1 540 EXHIBIT 2 [k3 KAMALA D. HARRIS Attorney General of California 0513 R. GUERRERO Supervising Deputy Attorney General JANE ZACK SIMON Deputy Attorney General I State Bar No. 116564 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 703-5544 Fax: (415) 703-5480 E-mail: Janezack.si1non@doj .ca. gov Attorneys for Complainant Osteopathic Medical Board ofCal?'omin BEFORE THE OSTEOPATHIC MEDICAL BOARD OF CALIFORNIA DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA In the Matter of the Accusation Against: Case No. 16-2013-3764 DURAND JAE D.O., COURTESY NOTICE OF DEFAULT Osteopathic Physician?s and Surgeon?s Certi?cate No. 20A4578 Respondent TO RESPONDENT DURAND JAE KAI-ILER, D.O. PLEASE TAKE NOTICE that service of an Accusation was duly made upon you in the time and manner provided bylaw and that you have failed to ?le a Notice of Defense as was required of you. A copy of Accusation is attached to this notice. You must take immediate action and ?le a Notice of Defense or you will forfeit important rights, including the right to present a defense to the charges against you. If you fail to take action and ?le a Notice of Defense, the Osteopathic Medical Board of California will enter a Default Decision against your license, which is currently in delinquent status, and your license may be revoked or suspended without any hearing. Courtesy Notice of Default (1 6?2013-3 764) If you wish to present a defense to the charges set forth in the Accusaiton, you must immediately send a completed Notice of Defense to: Jane Zack Simon Deputy Attorney General Of?ce of the Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102 You may contact an attorney and be represented by an attorney at your own exPense. In addition, please take notice that you are required to maintain a current and accurate address of record with the Osteopathic Medical Board of California. DATED: 013113 KAMALA D. HARRIS, Attorney ~General the State of California 2 \1 JAN ZACK 5' ON Dept ty Attorne General Courtesy Notice of Default (1 6-2013-3764) DECLARATION OF SERVICE BY CERTIFIED MAIL Case Name: Durand Jae Kahler, D.O. Case No.: 16?2013-3 764 I declare: I am employed in the Office of the Attorney General, which is the of?ce of a member of the California State Bar at which member?s direction this service is made. I am l8 years of age or older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placed in the internal mail collection system at the Of?ce of the Attorney General is deposited with the United States Postal Service with postage thereon fully prepaid that same day in the ordinary course of business. I On September 6, 2013, I served the attached COURTESY NOTICE OF DEFAULT by placing a true copy thereof enclosed in a sealed enve10pe as certi?ed mail and return receipt requested, in the internal mail collection system at the Of?ce of the Attorney General at 455 Golden Gate Avenue, Suite 11000, San Francisco, CA 94102-7004, addressed as follows: Durand Jae Kahler, DO. 118 3. 3rd Avenue Sterling, CO 80751 Durand Jae Kahler, DO. 410 Melba Road Sterling, CO 80751 A 7l?b sons sill vase - - :e Article Numberdeelar . rrue and COT - all?) B. Data cl Dellvety Califon mam/(54m CH1. 6 0. Signal 731:?: . DAgani Lg: H35 a - 54 ElAddressee?m? . - (.1: 57:: 0- ls da?varv ad?resa dilfarenl from item 1? [3 Y3, .- . If YES. enter delivery address below: No a. Service Type CERTIFIED MAIN I 1 "0701751 lit": 4. Fieslricted Delivery? (any; FEE) Eyes I 1. Article Addressediorg . - - Durand w; 118 S. 3rd Avenue Sterling, CO 8075] - Jane ack Simon Form 3811, January 2005 Domestic Fieiurn Receipt "7 EXHIBIT 3 -STATE mus: {SUP-i?urdEF-?t msemcv - tat?J-eer-trucalv EDMUND BROWN are. OSTEOPATHIC MEDICAL BOARD OF CALIFORNIA 1300 National Drive, Suite 150. Sacramento. CA 95834?1991 (916) 928-8390 (915) 928-8392 I July 1, 2018 Jane Zack Simon, Deputy Attorney General Office of the Attorney General 455 Golden Gate Ave, Suite 11000 San'Francisco, CA 94102 Re: Durand Jae Kahler, D.O. DOB: 0330/1950 l, J. Corey Sparks, Lead Enforcement Analyst and Official Custodian of Records of the Osteopathic Medical Board of California, do hereby certify that Durand Jae Kahler, 0.0., was issued osteopathic physician's and surgeon?s license number 20A 4578 by the Osteopathic Medical Board of California on August 5, 1980. Said license is delinquent/inactive and expired on March 31, 2009; J. Core sparks Lead fo cement Analyst Osteopathic Medical Board of CA Section 162 of the Business and Professions Code: The certificate of the of?cer in charge of the records of any board in the department that any person was or was not on a speci?ed dateI or during a speci?ed period of time, licensed. certi?ed or registered under the provisions of law administered by the Board, or that the license, certi?cate or registration of any person was revoked or under suspension, shall be admitted in any court as prima facie evidence of the facts therein recited. BreEZe - State of California 1 Page i of 1 980V License Details The Department of Consumer Aliatrs encourages you to verify the license statuses of any licensees that may appear in a ?Heiated License? section below. You can verify these licensees by selecting 'New Search' and conducting a new search using the 'Search by Personal or Business Name' option. Piease note that the ?Relaied License' section will only appear below it this license is related to another license. Not all iicensees have a related license. It the License Details beiow include 'Date of Graduallon', the month and date of graduation may not be available. in this instance it will be displayed as where WW represents the year oi graduation. Please note that not all license types disclose 'Date of Graduation' on the License Details screen. Press "Search Results" to return to the Search Results list. Press "New Search Criteria" to do another search of this type. Press "New Search" to start a new search. DepOiIthEL-I'il of Consumer in): Skip navigation. Lam QM License Number: 4578 Name: License Type: License Status: Secondary Status: Secondary Status: Secondary Status: Current Date: 10/29fz?i3 02:22 PM KAHLER. DURAND JAE Osteopathic Physician and Surgeon License Delinquent if Accusatlon Filed Rig,- Probationary License .51- Other StaletFederal Government :th Expiration Date: 03i3112009 Original issuance Date: DBi05i19iilJ Addresses Address of Record Address 1m Emu ME STERLING . E0751 Mum Public Record Actions Administrative Disciplinary Actions Found [21 Court Order None found Misdemeanor Conviction None found Felony Conviction - Respondent None found Felony Conviction - involved Party None found Malpractice Judgment None found License issued with Public Letter of Reprlmand None found Administrative Citation Issued None found Administrative Action Taken by Other State or Federal Government Found [21 3.Search Results New Search Criteria New Search Print Beckie Top Conditions of Use Privacy Policy Accessibility Copyright it?) 2013 State of Calitornia ?nu?u? - w- .- i 1 fir'UOI'JFli '1 EXHIBIT 4 Urn?u.) BEFORE THE - OSTEOPATHIC MEDICAL BOARD OF CALIFORNIA DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA In the Matter ofthe Accusation Against: case No. 1690133764 CERTIFICATION OF DECLARATION OF JANE ZACK SIMON [Bus Prof. Code ?125.3] DURAND JAE KAHLER, D.O. OSTEOPATHIC AND CERTIFICATE NO. 20A4578 RESPONDENT. JANE ZACK SIMON declares and certi?es as follows: 1. I am a Deputy Attorney General employed by the California Department of Justice (DOJ) Attorney General?s Of?ce. (AGO) I am assigned to the Health Quality Enforcement Section in the Civil Division of the AGO. I have been designated as the representative to certify the costs of prosecution by DOT and incurred by the Osteopathic Medical Board of California in this case. I make this certi?cation in my of?cial capacity. 2. I represent Complainant, Angelina M. Burton, Executive Director of the OsteOpathic Medical Board. I was assigned to handle this case on or around July 8, 2013. As the Deputy Attorney General assigned to handle this case, I performed a variety of tasks necessary for the prosecution of this matter, including, but no limited to (1) conducting an initial case evaluation; (2) obtaining, reading and reviewing the materials and information from the other jurisdiction; (3) drafting pleadings, correspondence and other case-related documents; (4) consulting and/or meeting with colleague deputies, supervisory staff and client staff. 3. I am personally familiar with the time recording and billing practices of and the procedure for charging the client agency for the reasonable and necessary work performed on a particular case. Whenever work is performed on a case, it is the duty of the Deputy to keep track of the time spent and submit that time to the DOJ time?keeping program at or near the time of the tasks performed. Based on the time reported through October 28, 2013, D01 has billed or will bill Cost Certi?cation gum the Board for $510.00 for work on this case. correct and were necessarily incurred in this case. 4. To the best of my knowledge, the items of cost set forth in this certi?cation are I certify under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on October ?13, 2013 at San Francisco, California. ?shed TANEZ CK IMO Attorn . Gel eral Cost Certi?cation DECLARATION OF SERVICE BY MAIL In the Matter of the Accusation Against: Durand Jae Kahler, D.O. Case No. 162013-3764 I, the undersigned, declare that am over 18 years of age and not a party to the within cause; my business address is 1300 National Drive, Suite 150, Sacramento, CA 95834. I served a true copy of the attached: Default Decision and Order by mail on each of the following, by placing it in an envelope (or envelop-es) addressed (respectively) as follows: (sent by certified and regular mail) NAME AND ADDRESS CERT NO. Durand alas Kahler, Do. 91 7199 9991 7033 2037 0097 118,33 AVenue 91, 7199 9991 7:133 2937 9997 Sterling, CO 80751 Durand Jae Kahler, DO. 91 7199 9991 7033 2037 0074 410 Melba Road Sterling, CO 80751 91 7199 9991. 7933 2937 9979 Each said envelope was then, on November 13, 2013 sealed and deposited in the United States mail at Sacramento, California, the county in which I am employed, with the postage thereon fully prepaid, and return receipt requested. Executed on November 13, 2013 at Sacramento, California. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Steve Ly Typed Name Sig??ature?/ cc: Jane Zack Simon, Deputy Attorney General